USA > Maryland > The history of Maryland : from its first settlement, in 1633, to the restoration, in 1660 ; with a copious introduction, and notes and illustrations > Part 105
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"The judge may administer an oath to either party in any civil cause for the
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better investigation of the truth, and upon any one's refusal may proceed against him as if he had confessed the matter enquired of him by oath. The defendant in any cause civil or criminal may put himself for trial upon the judge or court, or upon his country, or may wage his law in cases allowable by the law of Eng- land ; if both parties join in the tryall it shall be tried according to their agree- ment. If either party desire to be tried by the country, and put in security to pay the charge of the jury, the issue shall be tried by the oath of 12 freemen returned by the sheriff and thought fit by the judge to be admitted upon the ex- ception of either party. And if the other party joined not in the trial by the country, he that caused the jury shall defray the charge of it, without putting it to costs; except that in criminals extending to losse of life or member the of- fender may demand to be tried by the jury, without putting in any security for the charge. The sheriff in awarning of juries shall observe a certain course and order of turnes among all the freemen of the county, (the counsill or commissioners only excepted,) to which end the writ for warning the jury shall not be returna- ble until 15 days at the least after the delivery of it to the sheriff. And the sheriff upon receiving any writ may award out precepts to any his under sheriff or bailiffe in any hundred or division to the effect of the writ, which precept shall be of force to all persons, and the return of such under sheriff or bailiffe may be returned by the sheriff. Wageing of law against an accompt book shall be admitted according to the sound discretion of the judge. Where any execu- tor or administrator is party to the action, the judge may admit such proof as he shall think necessary and sufficient according to the case. This act to endure till the end of the next assembly."
F. Taken from "Lib. C. & WH." p. 85.
NOTE (XLIX.) p. 225.
A clause in the act of 1642, ch. 12, entitled "an act touching verdicts and judgments."
"If the judge think any verdict grievous to either party, or exceeding the issue committed to their inquiry, he may return them to consider better of it, or charge another jury with it, at the instance of either party desiring it and undertaking the charge. To which end the point in issue shall be delivered to the jury in writing underneath it, which shall be kept upon a file by the clerk of the court for the justification of his entry. And if the judge find the jury evidently par- tiall or wilful, he may charge another jury to enquire and try by the same evi- dence. And, if they find contrary to the former jury, all the former jury may be fined at the discretion of the judge. This act to endure till the end of the next assembly."
Taken from "Lib. C. & WH." p. 86.
NOTE (L.) p. 226. "An act touching succession to land." (1642, ch. 17.)
"Where any one dyeth seised of land in fee, not disposing of it otherwise by his last will, the next heir shall succeed as hath right by the law of England. In defect of such heir the nearest heir living within the province may enter upon the land and hold it for the use of such next heir. And if none nearer en- ter or clayme in 7 yeares he shall hold it in the same right and estate as if he had been next heir; And in defect of all such heirs living within the province the lord proprietarie may enter and hold the land in such manner as is afore ap- pointed for nearest heire ; And the widow shall succeed to the thirds of the lands and to the mansion house to hold it during her widowhood as her husband was seised of at any time during the coverture in such manner as she may by the law of England. To endure till the end of the next assembly."
Taken from "Lib. C. & WH." p. 95.
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NOTE (LI.) p. 234.
The new commissions of 1642, for the government of the province.
THE GOVERNOR'S COMMISSION.
"Cecilius, lord and proprietor of the provinces and countries of Maryland and Avalon in the parts of America, lord baron of Baltimore, &c., to all and singular persons to whom these presents shall come, greeting,-Know ye that we, for divers special considerations us thereunto moving have revoked and determined, Former com- and by these presents do declare, that we do hereby revoke and absolutely deter- voked. missions re- mine all former commissions heretofore granted unto our dear brother Leonard Calvert, esq., or to any other person whatsoever for or concerning the govern- ment of our said province of Maryland, and all power and authority by us there- by granted unto him or to any other. of our council, or to any other person or persons whatsoever, in and by the said commissions or any of them, and we do hereby likewise discharge all and every person and persons whatsoever from our council, and to be of our council within the said province of Maryland, which heretofore have been of our council there.
Nevertheless considering and well knowing that the people there cannot sub- sist and continue in peace and safety without some good government to be or- dained and established as well for the cherishing of the virtuous and orderly, as for the punishment of the lewd and disorderly persons there, and calling to mind the faithful and laudable services done by our said dear brother Leonard Calvert, esq., as well in the adventure of his person in the first discent and settling of our colony within our said province of Maryland, as in the ordering and advancing of the same by his personal residence within the same our said province, wherein he hath manifested to the satisfaction of ourself and of our colony there, such wisdom, fidelity, industry and other virtues, as render him capable and worthy of the trust hereby by us intended to be reposed in him, have nominated, constitut- ed, ordained, authorised, established, and by these presents do nominate, consti- tute, ordain, authorise and establish, the said Leonard Calvert in the absence of us and our heirs, our lieutenant general, admiral chief captain, and commander, as well by sea as by land, of our said province of Maryland and the islands to the lieutenant same belonging, and we do by these presents grant unto him the chief command- general, &c. ment and absolute authority above and in all matters of warfare by sea and land, &c. to execute and administer the same to the resistance of the enemies or suppres- sion of mutinies and insolencies, as our said lieutenant shall think most commo- dious for the preservation of our said province, and to do all such things as do belong or appertain to the office of a general, admiral, chief captain and com- mander, in as large and ample manner to all intents and purposes as we ourself might do, if we were personally present by force or virtue of the letters patent to us granted by our sovereign lord, king Charles, under the great seal of England, bearing date at Westminster, the 20th day of June, in the 8th year of his majes- ty's reign, to have, hold, execute and administer the same with such and as ample power and authority, as if we were personally present, might do or exe- cute the same by force or virtue of the letters patent aforesaid, until we shall signify our pleasure to the contrary.
And we do hereby further ordain and command all such as shall hereafter be sworn of our council within our said province of Maryland, all captains, officers and soldiers, as well by sea as by land, whom it doth or may concern, all our officers, receivers, bailiffs, marshalls, and all other inhabitants of our said pro- vince of Maryland, of what quality and condition soever, that they and every of them do acknowledge the said Leonard Calvert in the quality of lieutenant gene- ral, admiral, chief captain and commander, over all our foresaid province of Maryland and the islands and members of the same, and do honour, respect and obey him as they ought to do, upon pain of such punishment to be inflicted upon
Leonard Cal- vert to be
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This com- mission to be proclaimed within the province.
them and every of them, as such a high contempt as the disobedience and ne- glect thereof shall deserve, and to the end that no man shall pretend ignorance, we do command this our commission and ordinance to be proclaimed and pub- lished within our said province, at the places accustomed to proclaim and pub- lish any our edicts and ordinances commanding him our said lieutenant to pro- ceed with rigour against all contemners and neglecters of the same in such strict and severe manner as we ourself might do by force and virtue of the said letters patent, if we were there personally present, and that without favour and conni- vance.
Leonard Cal- vert to be chancellor, And we do further by these presents make, constitute, ordain and establish the said Leonard Calvert to be our chancellor, chief justice and chief magistrate chief justice, within our said province, untill we or our heirs shall signify the contrary under &c. our hand and seal; and we do hereby give him power, from time to time, to appoint and constitute officers and ministers, for the administration and execution of justice, and for doing and executing of all other things whatsoever, which belong to the establishing and government of a good and happy commonwealth within our said province.
Power to him And we do further by these presents grant unto him our said lieutenant, chan- to call assem- cellor, chief justice, and chief magistrate, full and absolute power and authority, blies. when and as often as he shall think fit to call and summon one or more general assembly or assemblies of the freemen of our said province, or their deputies, at such place or places within our said province, as he shall think fit, for the con- sulting, preparing and enacting of wholesome laws and ordinances, for the government and well ordering of the said province, and people within the same, to which purpose we do hereby grant full power and authority unto our said lieutenant general, chancellor, chief justice, and chief magistrate, from time to time, in every general assembly, to be summoned by him in the said province of And to assent Maryland, in our name, stead and place, to give assent and consent unto all such to laws. laws and ordinances as he our said lieutenant general, chancellor, chief justice, and chief magistrate shall think fit and necessary for the good government of our said province of Maryland, and which shall be consented unto and approved of by the freemen of our said province, or the major part of them, or their deputies, Such laws to to be assembled by him the said lieutenant general, chancellor, chief justice, and be no longer chief magistrate, there from time to time, for the enacting of laws within that his lordship's province, Provided that the said laws so to be assented unto by him, our said in force after disassent thereto. lieutenant general, chief justice, and chief magistrate there, in our name, be, as near as conveniently may be, agreeable and not contrary to the laws of England ; every which law so to be assented unto by him our said lieutenant general, chan- cellor, chief justice, and chief magistrate there in our name, and consented unto and approved of by the freemen or their deputies, or the major part of them as aforesaid, we do hereby declare, shall be in force within the said province, till we or our heirs shall signify our or their disassent thereunto, under our or their hand and seal, and no longer, unless after the transmission thereof unto us or our heirs, and due consideration had thereupon, we or our heirs shall think fit to confirm the same under our or their hand and seal.
Power to the lieutenant general to ad- journ, &c. assemblies. Power to him to publish edicts and proclama- tions.
And we do by these presents grant full power and authority unto our said lieutenant to adjourn, prorogue and dissolve all and every such assembly and assemblies, by him heretofore called, or hereafter to be called at his pleasure.
And forasmuch as the calling of a general assembly of the said freemen, and the consulting about and enacting of laws, will require long time and much con- sultation, and many times sudden and other necessary occasions may happen or fall out, which require a speedy remedy ; we do therefore hereby grant unto him our said lieutenant, full power and authority, from time to time, to make, consti- tute, ordain and publish in our name, such reasonable and profitable edicts and
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proclamations within our said province of Maryland, with reasonable pains and penalties therein to be expressed, to be duly inflicted on all offenders against the same as he our said lieutenant in his discretion shall think fit, and as by our letters patent above mentioned, is and are warranted, Provided, that such penal- Proviso, ties do not extend to the taking away the rights or interests of any person or persons of or in their life, members, freehold, goods or chattels, nor be repugnant of such edicts strictly limit- ing the extent or contrary, but agreeable, as near as may be to the laws established within the realm of England, and to the laws and ordinances established, or to be establish- ed, within our said province of Maryland, all which edicts and proclamations shall stand in force only and untill we or our heirs shall signify the contrary, under our or their hand and seal to him our said lieutenant and the people there, or that he our said lieutenant shall, in his discretion, think fit to repeal the same, or that the same be repealed in a general assembly of the said freemen, or their deputies, to be called and assembled as aforesaid, with the consent of our said lieutenant.
And further we do hereby grant full power and authority unto him our said Power to him lieutenant, to appoint from time to time, fit places for public ports for lading, public ports, to appoint shipping and unlading, and discharging of all goods and merchandizes, to be fairs and imported or exported out of our said province, and to appoint officers and minis- markets. ters in the same places and ports, and also to erect and establish convenient places for the holding and keeping of fairs and markets, and to establish markets and fairs to be there held upon certain days, for that purpose to be by him ap- pointed.
And we do further by these presents grant full power and authority unto him Power of our said lieutenant, (if he see cause) to pardon and remit in part, or in the whole granting par- all pains, forfeitures or penalties, which any person or persons within our said remitting for- dons and of province shall incur for any crime, misdemeanor, or offence against any the laws, feitures. ordinances, or orders whatsoever, made or to be made for the good government of our said province, and to grant pardons for all and every such delinquents in our name, under our great seal of our said province, so as such pardon or par- dons extend not to the pardoning of high treason.
And further we do by these presents [grant full power and authority unto him Lieutenant our said lieutenant]* commit the custody and keeping of our great seal of our general to be said province unto him our said lieutenant, And we do hereby grant unto him great seal. keeper of the our said lieutenant, power and authority for us and in our name to pass and grant under our said great seal, all writs and processes, all commissions as well for authorising such person and persons to be of our council there, as we shall from time to time appoint by warrant or direction, under our hand and seal, as for the execution of justice, and for dividing and bounding of lands, all pardons, licenses, and all other public acts and deeds whatsoever, which shall at any time pass within our said province.
And we do further hereby grant full power and authority unto him our said Power to hinx lieutenant, for us and in our name to pass and grant, under our great seal, to to grant pat- such person and persons such proportion and quantities of land within our said ents for lands. province for such estate and interest, and with such privileges and immunities as have, since the 16th day of October, 1640, or from time to time shall give him our said lieutenant warrant from under our hand and seal, all which grants so to be made or passed, after the same grants and the said warrants under our hand and seal for the passing thereof, shall be enrolled by our secretary of the said province, for the time being, and not afore, we do hereby declare, shall be effec-
* There is some error in the language here, but it is so in the record. The words which I have inclosed within brackets, appear to have been inserted through mistake by the person who entered it on the original record, or by him who copied it into the record book now existing. Scc the same clause in the subsequent commission of September 18th, 1644.
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tual in law against us, and shall bind us and our heirs as firmly as if livery and seisin had been given and executed thereupon.
And because we hold it fit that some persons should be sworn of our council within our said province, for the better assistance of him our said lieutenant in the execution of the premises, and of the charge by us committed unto him, we do authorise and require our said lieutenant to administer the ordinary oath of a councillor to every such person and persons which shall hereafter be admitted of our council within our said province of Maryland, before such person and per- sons to be admitted of our said council with whom our said lieutenant shall from time to time advise, as he shall see cause upon all occasions concerning the good government of our said province of Maryland, and of the people there.
Lieutenant general to be And we do hereby grant full power and authority unto him our said lieuten- sole judge of ant, to enquire, hear, determine, and finally to judge of and upon all causes all causes criminal, (ex- cept where concerned,) and of all (except in hold.) criminal whatsoever, of what nature, kind, quality, degree or condition soever the same shall be, which may happen or arise within our said province of Mary- life, &c. are land, as fully and absolutely as we ourself might do by force or virtue of the letters patent aforesaid, if we were personally present to give sentence or judg- causes civil, ment of or in or upon the same (excepting only where the life or members of any cases of free person shall or may be inquired of or determined) and to award execution upon every such sentence or judgment, and also to hear and determine all civil causes, actions, suits and demands, both in law and equity, of or concerning any goods, chattels, contracts, debts, demands, or other personal or mixed action or actions, suit or suits whatsoever (excepting where the freehold of any person or persons shall come in question) in the most summary and equal way that he may, ac- cording to the orders, laws and statutes, of that our said province of Maryland, already made and established, or hereafter to be made and established, and in default of such laws established, or to be established within the said province of Maryland, then according to the laws and statutes of the realm of England, as near as he can or may judge or determine thereof.
Lieutenant general, with the council, judges of capital cases, and cases of freehold.
And where the life, member or freehold of any person or persons, shall happen to come in question within our said province of Maryland, we do hereby grant unto him our said lieutenant, and unto such persons as we shall from time to time, by commission under the great seal of our said province, nominate and appoint to be of our council within the said province of Maryland, or unto any three of them (whereof our said lieutenant to be always one) full power and authority to inquire, hear and determine thereof, according to the laws of our said province of Maryland, established or to be established; and in default of such laws there established, or to be established according to the laws of Eng- land, as near as they can judge thereof, and to award execution accordingly.
Power to the lieutenant general in case of his death or ab- sence to ap- cessor.
And lastly, whereas the said lieutenant may happen to die or be absent for some time out of our said province of Maryland before we can have notice to depute any other in his place, we do therefore hereby grant unto him our said lieutenant full power and authority from time to time in such cases to nominate point his suc- elect and appoint such an able person inhabiting and residing within our said province of Maryland as he in his discretion shall make choice of and think fit to be our lieutenant general, chancellor, admiral, chief captain, magistrate and commander as well by sea as by land of our said province of Maryland and of the islands to the same belonging and in as large and ample manner as we have by these presents authorised him our said lieutenant to govern for the present.
In case of his failure to do
And in case our said lieutenant shall happen to die or be absent out of our said so, the coun- province of Maryland and shall fail to make choice of nominate and appoint cil to appoint some person to be our lieutenant general admiral chancellor and chief captain one of their own body thereto. magistrate and commander of our said province of Maryland as well by sea as by land, we do hereby grant unto our councillors there for the time being or the
And to ad- minister an oath to the councillors.
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greater part of them full power and authority from time to time in every such case to nominate and elect and appoint such an able person which shall then be of our council there and inhabiting and residing within our said province of Maryland as they or the greater part of them shall make choice of and think fit to be our lieutenant general, chancellor, admiral, chief captain, magistrate and commander as well by sea as by land of our said province of Maryland and of the islands to the same belonging which person so to be chosen and appointed in any of the cases aforesaid we do hereby declare shall be our lieutenant general chancellor admiral chief captain and commander of our said province of Maryland during the absence of our said brother or untill we or our heirs shall signify our plea- sure to the contrary, to which lieutenant general, chancellor, admiral, chief cap- tain, magistrate and commander so to be elected nominated and appointed as aforesaid we do hereby grant the like power and authority in all causes and things as we have by these presents given and granted unto our said brother, hereby commanding our councillors, captains, soldiers, officers and ministers, for the time being, and the people of our said province of Maryland and all others whom it may concern to be obedient unto him in all things, matters and causes as we have in and by these presents commanded them to be obedient unto our said brother our present lieutenant general chancellor admiral chief magistrate cap- tain and commander upon pain of such punishment to be inflicted upon them and every of them as such a high contempt shall deserve. Given under our great seal of our said province of Maryland at our Fort of St. Mary's within our said province on the fourth day of September Anno Dom. 1642.
The same 4th of September was the said commission published at the Fort of St. Mary's."
[Taken from "Council Proceedings from 1636 to 1657," p. 68 to p. 78.]
"Commission of the Council.
"Cecilius lord and proprietor of the provinces of Maryland and Avalon in the parts of America lord baron of Baltimore, &c. to our dear brother Leonard Cal- vert esq., our lieutenant general of our said province of Maryland and to our trusty and well beloved colonel Francis Trafford esqr., Thomas Cornwaleys esqr. John Lewger esqr. William Blount esqr. and John Langford esqr. greeting, know ye that we reposing especial trust and confidence in your wisdoms dili- gence and experience have assigned and appointed you jointly and every of you severally to be of our privy council within our said province of Maryland, and we do hereby give unto you and every of you full power and authority from time to time and at all times, until we shall determine or otherwise revoke this pre- sent commission, to assemble and meet together with our lieutenant general of our said province for the time being when and where he shall from time to time direct and appoint to treat consult deliberate and advise of all matters causes and things which shall be discovered unto you or be brought before you as well con- cerning the quiet government and regulating the people there as for the good and safety of our said province of Maryland and for the better and more peaceable government of our said province of Maryland we do hereby appoint and assign you and every of you (until we shall revoke or determine this present commis- sion) to be our justice and justices commissioner and commissioners for conser- vation of the peace within our said province of Maryland and do hereby grant unto you and every of you (in case any breach of peace shall happen within your, or any, or either of your view, or in case you shall be informed of any breach of the peace full power and authority to arrest or call before you by your warrant to be directed to the sheriff's constables or other officers of counties towns villages and other places within our said province of Maryland all and every the offender and offenders against our peace and if you see cause to bind over the offender or offenders with a good surety or sureties to appear before our lieuten-
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